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Anti-"Spam" Laws

Beginning in 1997, a total of 38 states passed laws regulating unsolicited electronic mail or "spam." State anti-spam laws range from narrow provisions directed at sexually-oriented email to comprehensive acts imposing a wide variety of restrictions.

Common provisions of state anti-spam laws:


Require the sender of an email to correctly identify oneself;
Forbid a sender to place misleading routing information in an email;
Make it illegal for a sender to use another's Internet domain name without permission;
Bar the distribution of software designed to falsify the sender, routing information, or subject line of an email;
Require a sender to provide a means by which a recipient can ask not to be contacted;
Mandate that a label (typically, "ADV:" or "ADV:ADLT") appear in the subject line of an email containing advertising or sexually-oriented material;
Entitle a recipient or an Internet service provider to sue violators; and
Impose criminal penalties.
Although Utah repealed its general anti-spam law, legislators passed a law creating a "child protection registry"--that is, a set of contact points for persons under 18. It will be illegal to send email containing sexually-oriented material or advertisements for age-restricted products to the registry. Michigan has passed a similar law.

A federal anti-spam law took effect January 1, 2004. Public Law 108-187, the CAN-SPAM Act, was signed into law by President Bush in December 2003. Click here for a summaryThe Act generally pre-empts the state anti-spam laws already on the books. However, state laws prohibiting deception in connection with electronic mail, laws of general application (such as those dealing with trespass, contract, or tort law), and laws governing computer crime, are not pre-empted.

The CAN-SPAM Act has a number of provisions that differ from those commonly found in state anti-spam laws:

Using "harvesting" or "dictionary attacks" to find email addresses is specifically outlawed;
A company can be held liable for permitting the use of spam to promote it;
Flagrant violators (such as those who engage in fraud, send large numbers of emails, or are repeat offenders) are subject to prison terms;
Service providers and state agencies may sue violators;
Email recipients may not sue for damages, although the Act authorizes "bounties" for individuals who report violators to the authorities; and
The Federal Trade Commission is directed to study the feasibility of a national "Do Not Email" registry. (On June 15, 2004, the Commission reported to Congress that such a registry would not be effective in stopping spam.)

On May 19, 2004, the Federal Trade Commission adopted a final rule implementing the CAN-SPAM Act's requirement that sexually explicit emails be identified as such in the subject heading, and that their initially viewable portion contain no sexually explicit material. On September 17, 2004, the FTC issued a report on the feasibility of offering a "bounty" to those who provide information leading to the identification of a CAN-SPAM violator. The Commission recommended limiting a bounty program to insiders and whistle-blowers who can provide "high value" information about a violation.

The CAN-SPAM Act also directed the Federal Communications Commission to adopt rules designed to protect mobile service customers from unwanted commercial messages. On August 4, 2004, the Commission adopted a general prohibition on sending commercial messages to any address referencing an Internet domain associated with wireless subscriber messaging services.

There have been legal challenges to anti-spam laws. Opponents have raised two arguments. Their first is that state spam laws violate the Commerce Clause of the U.S. Constitution by putting an unfair burden on out-of-state business interests and by creating inconsistent state-law requirements. Their second argument, which has also been used to attack "junk fax" statutes, is that these laws unreasonably restrict commercial free speech.

In State v. Heckel, 143 Wash. 2d 824, 24 P.3d 404 (2001), the Supreme Court of Washington held that state's anti-spam law did not violate the Commerce Clause. In doing so, it noted that the law was directed at senders who used a Washington-based computer or targeted Washington residents, and concluded that the benefits of the law--namely, promoting truthful headers and routing information--outweighed the burdens it placed on senders. 

In Ferguson v. Friendfiinders, Inc., 94 Cal. App. 4th 1125, 115 Cal. Rptr. 2d 258 (2002), the California Court of Appeal, Second District, reached a similar result, holding that state's anti-spam law did not violate the Commerce Clause.

In MaryCLE v. First Choice Internet Inc., 166 Md. App. 481, 890 A.2d 818 (Md. Ct. App. 2006), an intermediate appeals court overruled a trial court and held that the Maryland Commercial Electronic Mail Act did not violate the Commerce Clause.

However, in Jaynes v. Commonwealth, No. 062388 (Va. Sup. Ct., September 12, 2008), the Supreme Court of Virginia unanimously reversed a criminal conviction under that state's anti-spam law. The alleged offense was intentionally falsifying the sender's routing information. The court concluded that since the law was not limited to commercial electronic mail, it could be used to prosecute those who exercised their First Amendment right to disseminate political speech under names other than their own. It held that the law was overly broad and therefore unconstitutional.

To read the full text of a jurisdiction's anti-spam laws, click on the link below.

Introducing "Smart Text": Several enhancements have been added to make the statutes and administrative rules easier for you to use: subject lines are more focused and descriptive; subdivisions are indented to make the organization of sections more clear; references that are not self-evident (e.g., "this act") are explained; and citations to session laws are uniform and comprehensible. Additionally, when only part of a long code section is pertinent to the topic at hand, the non-pertinent material appears in a lighter color.

  Misleading
Sender ID
Misleading
Routing Info
Use of Another's Name Distribution
of Software
Recipient
Opt-out
Subject Line Labeling Right to Sue Criminal Penalties Comments
Alabama

 

 

 

 

 

 

 

 

 

Alaska

 

 

 

 

    

X

 

 

B

Arizona

X

  X  

X

 

X

X

X

X

 

Arkansas

X

 X

X

X

X

X

X

X

 

California

  

 

X

 

X

 

X

X

   

Colorado

  

X

X

  

X

X

X

  

   

Connecticut

  

X

 

X

X

X

X

X

 

Delaware

 

X

 

X

X

 

 

 

 

Dist. of Col.

 

   

   

   

   

   

 

 

 

Florida

X

X

X

X

  

 

X

 

D

Georgia

X

X

X

 

 

 

X

X

 

Hawaii

 

 

 

 

 

 

 

 

 

Idaho

X

X

 

 

X

 

X

 

 

Illinois

 

X

X

X

X

X

X

X

   

Indiana

 

X

X

 

X

X

X

 

 

Iowa

 

X

 

 

 

X

X

X

  

Kansas

 

X

X

X

X

 

X

 

A

Kentucky

 

 

 

 

 

 

 

 

 

Louisiana

X

X

X

X

X

X

X

X

 

Maine

  

X

X

  

X

X

X

 

 

Maryland

 

X

X

 

 

 

X

 

 

Massachusetts

 

 

 

 

 

 

 

 

 

Michigan

X

X

X

X

X

X

X

X

 

Minnesota

 

 

 

 

 

 

 

 

Y

Mississippi

 

 

  

 

 

 

 

 

 

Missouri

X

 

 

 

X

X

X

 

 

Montana

 

 

 

 

  

 

 

 

 

Nebraska

 

 

 

 

 

 

  

 

 

Nevada

X

X

X

X

X

X

X

X

 

New Hampshire

 

 

 

  

 

 

 

 

 

New Jersey

 

 

 

 

 

 

 

 

 

New Mexico

 

 

 

 

X

X

X

 

 

New York

 

 

 

 

 

 

 

 

 

North Carolina

 

X

  

 

 

 

X

X

 

North Dakota

  

X

X

  

  X

X

X

  

 

Ohio

  X

 X

   

 

  X

   

 X 

X

 

Oklahoma

 

X

X

X

  X

X

X

 

A

Oregon

 

X

X

 

 

X

X

 

E

Pennsylvania

X

X

X

X

X

X

X

X

 

Rhode Island

 

X

X

X

X

 

X

X

 

South Carolina

 

 

 

 

 

 

 

 

  

South Dakota

 

X

X

 

 

X

X

X

 

Tennessee

 

X

  

X

X

X

X

 

 

Texas

  

X

X

 

X

X

X

X

A

Utah

 

 

 

 

 

 

 

 

Z

Vermont

 

 

 

 

 

 

 

 

 

Virginia

 

X

 

X

 

 

X

X

 

Washington

 

X

X

 

 

 

X

 

 

West Virginia

 

X

X

X

  

 

X

 

C

Wisconsin

  

   

   

  

 

 X

  

X

B

Wyoming

 

X

X

 

 

 

 

 

A

Federal Law

X

X

X

 

X

X

X

X

D

 

Comments/notes:

A - Violators are subject to civil penalties.
B - Applies only to emails containing sexually-oriented material.
C - Bans outright the sending of bulk email containing sexually explicit materials.
D - A government agency or Internet service provider may sue but a recipient of email may not.
E - This law was scheduled for sunset repeal, effective January 2, 2006. However, it is not clear from the Oregon Revised Statutes whether it was in fact repealed.

Y - Automatically repealed, effective January 1, 2004, when the federal CAN-SPAM law took effect.
Z - Repealed effective May 3, 2004.

Disclaimer: The material relating to anti-spam laws is presented as an example of legal research and analysis performed by Paul Ruschmann, J.D. It is based on statutes, administrative rules, and session laws obtained from official sources. The law is constantly changing; and code sections may have been added, amended, or repealed since this material was compiled. This material is presented solely for informational purposes, and is not to be construed as legal advice or to create an attorney-client relationship. If you have specific questions, you should consult with your attorney. Those parts of the site that are not part of the public domain are copyrighted, and may not be copied or distributed without the author's permission.

Copyright © 2002-08 PAUL RUSCHMANN. All Rights Reserved.
Last updated 3 December 2008.